It is easy to be confused between affidavits and hearsay. It is also quite common for people to think that affidavits and hearsay are the same thing.
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The truth is that sffidavits are not hearsay themselves, but they may sometimes include hearsay. This sometimes (but not always) means that the hearsay part of the affidavit cannot be relied upon in court.
To help understand the difference between affidavits and hearsay a little more it will be helpful to start with the definition of each.
Affidavits
An affidavit is simply a written statement which the person making the statement solemnly promises is true. Affidavits are frequently used as way of giving evidence for court proceedings.
To do this, the person making the affidavit (the “affiant”) writes all the facts which they believe to be true down in their affidavit and then swears or affirms it before an authorised person (often a notary public).
Used in this way, the affidavit is a substitute for the affidavit giving oral evidence on the witness stand in court. Instead the judge deciding the case simply reads the affidavit and the affidavit is taken to be evidence in the case.
Hearsay
Hearsay is a form of evidence, including affidavit evidence. As its name suggests, hearsay is evidence that a person gives of something that they heard another person say. An example of hearsay would be: “Dan said that he saw the vehicle was on fire.”
An affiant can include hearsay evidence in their affidavit by simply including words such as those in the example. However the judge may not allow the hearsay to be included as evidence.
If the judge makes such a ruling then the hearsay part of the affidavit is ignored by the court. The inclusion of the hearsay does not invalidate the rest of the affidavit.
Whether the hearsay part of an affidavit can count as evidence will depend mainly on two things. First, the particular kind of court proceedings and the stage that they are up to. And secondly, whether the hearsay statement is being relied upon for the truth of the matters asserted.
This second question is known as the “rule against hearsay”. It sounds deceptively simple but it causes advocates and judges many problems.
Our example above however is quite straightforward. If the hearsay statement in the affidavit was “Dan said that he saw that the vehicle was on fire” then that statement would usually be prohibited from counting as evidence that the vehicle was on fire.
But if the statement was being relied upon to prove simply what Dan said (for example to show that he was a liar because the vehicle was never in flames) then the statement would not infringe the hearsay rule. That part of the affidavit would be allowed to count as evidence.
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